dismissed L-1A Case: Beauty And Surgical Instruments

PUBLl\.,COpy
identifYingdata deletedto
preventclearly unwarranted
invasionofpersonalprivacy
U.S. Department of HomelandSecurity
20 Massachusetts Ave., N.W., Rm.3000
Washington, DC 20529
US. Citizenship
and Immigration
Services
File: EAC 06144 52331 Office: VERMONT SERVICE CENTER Date: SEP 0 62007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § llOl(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~,~
Administrative Appeals Office
www.uscis.gov
EAC 06 14452331
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act),
8 U.S.C. § IIOl(a)(l5)(L). The petitioner, a New York corporation, states that it is a distributor of pedicure,
manicure, beauty and surgical instruments. It claims to be a subsidiary of Lucky Seven Industries (Pvt.) Ltd.,
located in Sia1kot, Pakistan. The petitioner seeks to employ the beneficiary as its vice president for a three­
year period.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the evidence
of record establishes that the beneficiary will be employed in a managerial capacity, specifically as a
function manager, and that he will be the top executive of the U.S. company. Counsel submits a brief and
copies of previously submitted evidence in support of the appeal.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section lOl(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering
his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this
section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be
performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
EAC 0614452331
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that
was managerial, executive or involved specialized knowledge and that the alien's
prior education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § I 10I(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a
department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section IOI(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the
board of directors, or stockholdersof the organization.
EAC 06 144 52331
Page 4
The nonimmigrant petition was filed on April 5, 2006. The petitioner stated on Form 1-129 that the
beneficiary would serve as vice president responsible for sales and marketing, and indicated that the U.S.
company has four employees. In a letter dated March 1, 2006, the petitioner stated that the company has
three employees. The petitioner described the beneficiary's proposed duties as follows:
[The beneficiary] would be in charge of overseeing and coordinating the various operational
activities of our Company. He would help management on sales aspects to negotiate contracts
to increase business....
* * *
[The beneficiary] would advise the Chief Executive on the financial and budgetary concerns
of introducing new products. He would also be responsible for the fiscal management of our
supplies and efficient use of the oversees [sic] financial management policy including the
financial control of corporate affairs, asset evaluation, and overseeing accounting of the US
operations and to help with banks regarding our entire financial activities in the US. He has
wide discretionary authority to take full responsibility of financial transactions and
management [sic] the economic affairs of the US operations.
As Vice President, [the beneficiary] will be empowered to manage the organization's
financial affairs and he will devote virtually all of his time to the management of the US
business.
The petitioner further stated, "the employees in the US company will report to the beneficiary and he will be
involved in the day to day operations of the company."
The director issued a request for additional evidence on June 6, 2006, in which the petitioner was instructed
to submit additional evidence to establish that the beneficiary would be employed in the United States in a
managerial or executive capacity. The director requested evidence to show that the U.S. company is of a
sufficient size to support a managerial or executive position, including evidence to demonstrate that the
beneficiary will be relieved from performing the non-managerial, day-to-day operations of the company.
The director further requested: (1) a breakdown of the number of hours devoted to each of the beneficiary's
proposed job duties on a weekly basis; (2) an organizational chart for the u.s. entity along with complete
position descriptions for the company's employees; and (3) additional evidence showing the management
and personnel structure, including the number of subordinate supervisors who will be under the beneficiary's
supervision and their job titles and duties.
The petitioner responded in a letter dated June 22, 2006, in which the beneficiary's duties were further
described as the following:
[T]he company transferred (the beneficiary] to promote sales, to tackle after-sales and to
administer all affairs of the New York office with controlling authority. He will be relieved
from non-managerial work as products are produced outside of the United States, thus no
production hassles are involved and secondly, sufficient staff is available to handle
operational matters. The salient features of his assignment are given hereunder:-
EAC 06144 52331
Page 5
1) To look after the existing business.
2) To promote business by adopting every suitable measure. For this purpose he has been
given a dedicated team to make business plans and to achieve the sales targets set by
management.
3) He has been given discretionary decision making authority:
a) To build a suitable and dynamic team.
b) To control and monitor the work of each team member.
c) To make appraisements of the staff to promote / reward the employees as per their
performance level.
d) To make / execute plans for the improvements/training of the personnel.
e) To hire and fire the employees as and when the need arises.
4) To establish a close liaison between the mother company and the US firm for smooth
supply of merchandise and to ensure that desired quality is maintained throughout
supplying a tender.
S) To handle complaints effectively and promptly.
6) To manage on-time finances for the mother company, suppliers and vendors.
His time will be divided as follows:
1. Approximately forty percent (40%) for visiting and interacting with present and new
clients.
2. Approximately forty percent (40%) for other sales and operational activities.
3. The remaining approximately twenty percent (20%) in administration and finance
matters.
The petitioner stated that the U.S. company has six employees, including the beneficiary's proposed
position, and provided the following list:
Controller Finance To look after financial affairs of the company and ensure
to maintain a balance between receivable and liabilities.
Warehouse Attendant To keep the merchandise well-placed and to keep an eye
on procurement.
Accounts Assistant
Secretary
Quality Assurance
Controller
To maintain the accounts books
To assist Vice President in his day-to-day activities
To ensure that pre-determined quality of merchandise is
supplied to the customers as well as to manage logistics
arrangement for timely deliveries.
EAC 0614452331
Page 6
The petitioner also provided an organizational chart depicting the beneficiary as "Vice President & Director
Marketing," and indicating that he would supervise the five listed employees, none of whom were depicted
as supervising lower-level subordinates.
The director denied the petition on October 30,2006, concluding that the petitioner failed to establish that
the beneficiary would be employed in a primarily managerial or executive capacity. The director observed
that the petitioner's descriptions of the beneficiary's proposed duties are general and do not specify how the
beneficiary will "look after and promote" the business. The director acknowledged the organizational chart
and employee list submitted and determined that the beneficiary would be acting as a first-line supervisor of
employees who had not been shown to be professionals.
Counsel for the petitioner appealed the director's decision on November 8, 2006. On the Form 1-290B,
Notice of Appeal, counsel for the petitioner asserts that the director erroneously denied the petition by
failing to consider whether the beneficiary manages an essential function within the company. Counsel
asserts that the beneficiary will manage the marketing department, and have the authority to hire and fire
employees and make all personnel decisions.
In an appellate brief dated November 15, 2006, counsel asserts that the director incorrectly focused on
whether the beneficiary would supervise professional employees, and claims that "in no place either on the
petition or in the supporting documents submitted therewith does it state that the beneficiary would be
supervising any employees." Counsel contends that it is "very clear" that the beneficiary will be employed
in an executive capacity, responsible for directing a major component or function of the organization, and
for expanding the foreign entity's international business. In support of these assertions, counsel re-submits
letters from the U.S. and foreign entities that were submitted with the initial petition.
Upon review, counsel's assertions are not persuasive. The petitioner has not established that it will employ
the beneficiary in a primarily managerial or executive capacity.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.20)(3)(ii). The petitioner's description of the
job duties must clearly describe the duties to be performed by the beneficiary and indicate whether such
duties are either in an executive or managerial capacity. Id.
The definitions of executive and managerial capacity have two separate requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions.
Second, the petitioner must show that the beneficiary primarily performs these specified responsibilities and
does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only
has the requisite authority, but that a majority of his or her duties are related to operational or policy
management, not to the performance of non-managerial or non-executive duties, or other involvement in the
operational activities of the company.
Here, the petitioner's descriptions of the beneficiary's duties are general, vague, and contradictory and are
therefore insufficient to establish that the beneficiary will primarily perform the types of high-level
EAC 0614452331
Page 7
responsibilities that are specified in the statutory definitions of managerial or executive capacity. Although
the beneficiary's proposed role has been designated as "vice president for sales and marketing" and "director
marketing," and counsel claims on appeal that the beneficiary will manage the marketing department or
function of the company, the petitioner's initial description of the beneficiary's duties did not outline the
managerial duties to be performed in relation to this function. Rather, the majority of the described duties
related to the petitioner's financial operations. For example, the petitioner initially stated that the beneficiary
would advise the chief executive on financial and budgetary concerns, be responsible for fiscal management,
oversee financial management policy, oversee accounting and financial control, assist in banking affairs, and
exercise discretionary authority over financial transactions and "management of economic affairs." Given
that the petitioner claims to employ a financial controller and an accounts assistant, the need for an executive
level employee to oversee financial functions is questionable, particularly in light of the petitioner's
suggestion that the primary purpose of the beneficiary's transfer was related to sales, marketing and business
development.
The petitioner's initial description of the beneficiary's job duties also indicated that the beneficiary would be
"in charge of overseeing and coordinating the various operational activities," and would "help management
on sales aspects to negotiate contracts to increase business." However, the petitioner did not explain what
"operational activities," the beneficiary would coordinate, or what specific tasks he would perform to "help
management" with respect to sales. Without further explanation, it is not clear whether the beneficiary would
be responsible for directly performing sales tasks, or whether he would direct others to do so. Specifics are
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
In response to the director's request for a more detailed description of the beneficiary's duties, the petitioner
submitted a significantly different account of the beneficiary's proposed duties. The information provided by
the petitioner in its response to the director's request for further evidence did not clarify or provide more
specificity to the original duties of the position, but rather added new generic duties to the job description.
The petitioner stated that the beneficiary will promote sales, "tackle after-sales," "administer all affairs,"
"look after the existing business," "promote business by adopting every suitable measure," "build a suitable
and dynamic team," "control and monitor the team members," and "handle complaints." While some of
these duties appear to be more in line with the beneficiary's proposed role as vice president or director of
sales and marketing, the petitioner did not clarify why it initially stated that his role would involve primarily
financial management duties. The purpose of the request for evidence is to elicit further information that
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When
responding to a request for evidence, a petitioner cannot offer a new position to the beneficiary, or materially
change a position's title, its level of authority within the organizational hierarchy, or its associated job
responsibilities. The petitioner must establish that the position offered to the beneficiary when the petition
was filed merits classification as a managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N
Dec. 248, 249 (Reg. Comm. 1978). If significant changes are made to the initial request for approval, the
petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in
the record.
EAC 0614452331
Page 8
Regardless, the petitioner did not clarify what specific managerial or executive tasks the beneficiary would
perform to promote sales, "tackle after-sales," "look after" the business or "administer all affairs," nor did it
explain who would relieve the beneficiary from non-managerial duties associated with the sales, after-sales
and promotion functions. Although the petitioner indicated that the beneficiary will "build a suitable and
dynamic team," there are no current company employees who are claimed to be engaged in any sales or
marketing duties . The petitioner must establish eligibility at the time of filing the nonimmigrant visa
petition. A visa petition may not be approved based on speculation of future eligibility or after the petitioner
or beneficiary becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec.
248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Reciting the beneficiary's
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a
detailed description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves
will reveal the true nature of the employment . Fedin Bros. Co., Ltd. v, Sava, 724 F. Supp. at 1108.
Finally, the petitioner provided yet another account of the beneficiary's duties in response to the director's
request for a breakdown of how the beneficiary will allocate his time among his various duties, noting that
the beneficiary would devote 40% of his time to "visiting and interacting with" existing and new clients, and
an additional 40% of his time on "other sales and operational activities." These duties suggest that the
beneficiary will in fact devote more than half his time to directly selling and promoting the petitioner's
products to clients, duties that cannot be considered primarily managerial or executive in nature . An
employee who "primarily" performs the tasks necessary to produce a product or to provide services or other
non-managerial or non-executive duties is not considered to be "primarily" employed in a managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily " perform
the enumerated managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec.
593,604 (Comm. 1988).
Furthermore, the AAO notes that the description providing the breakdown of the beneficiary's duties was
substantially different and even less detailed than the other two descriptions submitted. The AAO is not in a
position to determine which, if any, of the submitted job descriptions represents an accurate account of the
beneficiary's actual duties. It is incumbent upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19
I&N Dec. 582 , 591-92 (BIA 1988) . Overall, the petitioner's vague descriptions of the beneficiary's proposed
role provided no clear understanding of what duties he will perform on a day-to-day basis, and fell
significantly short of establishing that he would be employed in a primarily managerial or executive
capacity.
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function
managers." See sections 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii).
Personnel managers are required to primarily supervise and control the work of other supervisory,
professional , or managerial employees. Contrary to the common understanding of the word "manager," the
statute plainly states that a "first line supervisor is not considered to be acting in a managerial capacity
merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional."
Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(l)(1)(ii)(B)(2). If a beneficiary directly supervises
EAC 06 144 52331
Page 9
other employees, the beneficiary must also have the authority to hire and fire those employees, or
recommend those actions , and take other personnel actions. 8 C.F.R. § 214.2(l)(1)(ii)(B)(3).
The director determined that none of the beneficiary's proposed subordinates would be employed in a
managerial, supervisory, or professional capacity, and therefore concluded that the beneficiary does not
qualify as a manager based on his supervisory duties. On appeal, counsel does not appear to dispute this
finding, although counsel objects to the director's analysis, asserting that the petitioner never claimed that the
beneficiary would supervise any employees . Counsel is mistaken, as the petitioner stated in response to the
request for evidence that the beneficiary will hire and fire employees, make and execute plans for training
and employee development, appraise staff, control and monitor the work of the employees, supervise the
staff, and "ensure that every staff member performs properly." If counsel is now retracting these statements
without explanation , this only raises further doubts regarding the credibility of the submitted job
descriptions. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo, 19
I&N Dec. at 591 . Regardless, the AAO concurs with the director's determination that the employees
identified on the petitioner's organizational chart have not been demonstrated to be managers , supervisors or
professionals.
It should also be noted that the petitioner has not submitted documentary evidence to corroborate its claimed
staffing levels. At the time of filing, the petitioner indicated on Form 1-129 that it had four employees , and
stated in its supporting letter that it had three employees. In response to the request for evidence , the
petitioner claimed a staff of five employees. Again, it is incumbent upon the petitioner to resolve any
inconsistencies in the record by independent objective evidence . Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter ofHo, 19 I&N Dec. at 591-92.
Counsel argues on appeal that the beneficiary, as "director of marketing," will manage an essential function
of the petitioning company. The term "function manager" applies generally when a beneficiary does not
supervise or control the work of a subordinate staff but instead is primarily responsible for managing an
"essential function" within the organization . See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. §
1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner
claims that the beneficiary is managing an essential function, the petitioner must furnish a detailed position
description that clearly explains the duties to be performed in managing the essential function, i.e. identify
the function with specificity, articulate the essential nature of the function , and establish the proportion of
the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. An employee who primarily
performs the tasks .necessary to produce a product or to provide services is not considered to be "primarily"
employed in a managerial or executive capacity . Boyang, Ltd. v . I.N.S. , 67 F.3d 305 (Table) , 1995 WL
576839 (9th Cir , 1995)(citing Matter of Church Scientology International , 19 I&N Dec. 593, 604 (Comm.
1988)).
As discussed above , the petitioner has not provided a clear, consistent description of the duties to be
performed by the beneficiary in managing the claimed marketing or sales and marketing function. Based on
EAC 06144 52331
Page 10
these deficiencies, the beneficiary's job description does not establish that he would perform primarily
managerial or executive duties . Furthermore, in the case of a function manager, other employees carry out
the functions of the organization , even though those employees may not be directly under the function
manager's supervision. It is the petitioner's obligation to estab~ish that the day-to-day non-managerial tasks
of the function managed are performed by someone other than the beneficiary. In this matter , the
beneficiary is the only employee who is claimed to perform any sales, marketing or promotion duties , and
therefore, it is reasonable to assume, and has not been shown otherwise, that he would perform all non­
qualifying duties associated with the function. Such a conclusion is supported by the petitioner's statement
that the beneficiary would spend at least forty percent of his time directly visiting and interacting with
customers, and allocate additional time to "other sales activities." In this matter, the petitioner has not
provided evidence that the beneficiary manages an essential function.
On appeal, counsel further argues that the evidence clearly establishes that the beneficiary will be employed
as an executive in the United States, and notes that there is currently no full-time executive working for the
petitioning company. The statutory definition of the term "executive capacity" focuses on a person's elevated
position within a complex organizational hierarchy, including major components or functions of the
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act , 8
U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management"
and "establish the goals and policies" of that organization. Inherent to the definition, the organization must
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must
primarily focus on the broad goals and policies of the organization rather than the day-to-operations of the
enterprise. An individual will not be deemed an executive under the statute simply because they have an
executive title or because they "direct" the enterprise as the owner or sole managerial employee . The
beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general
supervision or d irection from higher level executives, the board of directors, or stockholders of the
organization." Id.
The AAO does not dispute that small companies require leaders or individuals who plan, formulate, direct,
manage, oversee and coordinate activities; however the petitioner in this matter has not indicated that the
beneficiary would spend a substantial amount of time performing duties at the executive level. The petitioner
must establish with specificity that the beneficiary 's duties comprise primarily managerial or executive
responsibilities and not routine operational or administrative tasks . The fact that the beneficiary manages a
business, regardless of its size, does not necessarily establish eligibility for classification as an intracompany
transferee in an executive capacity within the meaning of section 101(a)(15)(L) of the Act. See 52 Fed. Reg.
5738, 5739 (Feb . 26, 1987). Here, the record fails to establish that the majority of the beneficiary's duties
will be primarily directing the management of the organization or a component or function of the
organization.
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed.
Beyond the decision of the director, the record as presently constituted does not establish that the petitioner
has a qualifying relationship with its claimed parent company. To establish a "qualifying relationship" under
the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the
EAC 06144 52331
Page 11
proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a "parent
and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. § 214 .2(1). The
petitioner indicated on Form 1-129 that it is a subsidiary of Lucky Seven Industries (Pvt.) Ltd., and asserted
in its letter dated March 1, 2006 that it is wholly owned by the foreign entity. The petitioner submitted a
copy of its stock certificate #2 issuing "51%" of the petitioner's shares to the foreign entity on January 1,
2004, thus contradicting the petitioner's claim that the foreign entity is the sole owner of the company.
Furthermore, the petitioner submitted its IRS Form 1120S, U.S. Income Tax Return for an S Corporation ,
for the 2004 tax year, with attached Schedule K-1, Shareholder's Share of Income, Deductions , Credits, etc.
According to the Schedule K-l, the U.S. company is wholly owned by_ To qualify as a
subchapter S corporation, a corporation's shareholders must be individuals, estates, certain trusts, or certain
tax-exempt organizations , and the corporation may not have any foreign corporate shareholders . See Internal
Revenue Code, § 1361(b)(1999). A corporation is not eligible to elect S corporation status if a foreign
corporation owns it in any part. Accordingly, the petitioner has not established that it is a subsidiary of the
claimed foreign parent company. It is incumbent upon the petitioner to resolve any inconsistencies in the
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of
flo, 19 I&N Dec. 582, 591-92 (BIA 1988). For this add itional reason, the petition cannot be approved.
An application or petition that fails to comply with the technical requirements ofthe law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc . v. United States, 229 F . Supp. 2d 1025, 1043 (B.D . Cal. 2001), affd . 345 F .3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n . 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis) .
When the AAO denies a pet ition on multiple alternative grounds , a plaintiff can succeed on a challenge only
if he or she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds.
See Spencer Enterprises , Inc. v. United States, 229 F. Supp. 2d at 1043.
The petition will be denied and the appeal dismissed for the above stated reasons , with each considered as an
independent and alternative basis for the decision . In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner . Section 291 of the Act, 8 U.S.C. §
1361. Here , that burden has not been met.
ORDER: The appeal is dismissed.